Despite assurances from the major U.S. news media that American citizens retain their habeas corpus rights to a fair trial – even if non-citizens don’t – Justice Department lawyers have reasserted their claim that George W. Bush has the power to lock up anyone he chooses as an “enemy combatant” and effectively throw away the key.

“A citizen, no less than an alien, can be an enemy combatant,” administration lawyer David B. Salmons told a federal appeals court in Richmond, Virginia, on Feb. 1, adding that on such issues, the courts cannot interfere with the President’s wartime judgments.

Salmons did pledge that the Executive Branch will use care in deciding who is designated an “enemy combatant.” In response to one judge’s question about the President applying the tag to an activist from the People for the Ethical Treatment of Animals, Salmons joked, “the representative of PETA can sleep well at night.”

Nevertheless, Salmons argued that the judgment on who is deemed an “enemy combatant” is solely the discretion of President Bush. [NYT, Feb. 2, 2007]

Salmons presented his arguments in the case of Ali al-Marri, a citizen of Qatar who was arrested in Peoria, Illinois, in 2001 while studying on a student visa. The administration asserted that Marri was an al-Qaeda “sleeper cell” agent, declared him an “enemy combatant” and locked him up at a Navy brig in South Carolina.

Marri has challenged his indefinite detention through a federal court suit. However, Bush’s lawyers are citing the Military Commissions Act of 2006, which was passed in the final weeks of the Republican-controlled Congress and denies “unlawful enemy combatants” access to civilian courts.

After Bush signed the law on Oct. 17, 2006, the New York Times criticized the law’s denial of fundamental rights to non-citizens but assured U.S. citizens that the draconian system did not affect them.

“This law does not apply to American citizens,” the Times editorial stated, “but it does apply to other legal United States residents. And it chips away at the foundations of the judicial system in ways that all Americans should find threatening.” [NYT, Oct. 19, 2006]

Yet, while the Times is correct that the law explicitly denies habeas corpus and other rights to non-citizens, other sections of the law seem to apply to U.S. citizens as well, putting citizens inside the same tribunal system with resident aliens and foreigners.

“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law.

Another clause states that “Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission…may direct.”

Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.

Court-Stripping

Besides allowing for “any person” to go into Bush’s tribunal system, the law prohibits detainees once inside the system from appealing to the traditional American courts until a defendant is fully prosecuted and sentenced, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.

The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”

That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.

Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond an American detainee’s reach as well.

Though the New York Times believes the new law “chips away at the foundations of the judicial system,” the law actually seems to obliterate the old judicial system, especially if Bush were to apply the designation “enemy combatant” to large numbers of Americans.

Attorney Salmons contended that Bush is not interested in taking such a step at this point. But what might Bush do if, for instance, he expands the war in the Middle East and his actions are met with widespread civil disturbances? Could American citizens challenging the President’s war policies be deemed “enemy combatants” and detained?

Under the Bush administration’s theories – and the language of the Military Commissions Act – U.S. citizens presumably could be locked up along with non-citizens due to the catch-all provisions about aiding “an enemy of the United States.”

At the Marri hearing, Bush's lawyers appear to have been caught a bit off guard by the aggressive questioning from two of the three judges on the appeals court panel.

The two judges who asked probing questions – Roger L. Gregory and Diana Gribbon Motz – were appointed by President Bill Clinton. The third judge, Henry Hudson, was named to the bench by President George W. Bush.

In the random selection of the judges, Bush might have encountered some bad luck because the Richmond appeals court is heavily dominated by Republican appointees and tends to churn out opinions favorable to Bush’s positions.
However, even if a majority of the three-judge panel rules against Bush, the Justice Department could ask the full appeals court to reverse the ruling.

No ‘Unalienable Rights’

The department’s arguments in the Marri case are the latest evidence of the Bush administration’s disdain for the concept of “unalienable rights” as enunciated by the Founders in the U.S. Constitution and the Bill of Rights.

As explained by administration’s lawyers, Bush’s view is that for the duration of the “war on terror,” the Commander in Chief can exercise his “plenary” – or unlimited – powers. That means in effect that he can waive laws that he dislikes and ignore constitutional rights that get in his way.

Also, since the “war on terror” will go on indefinitely and since the “battlefield” is everywhere, Bush is asserting the President’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.

The administration’s contempt for habeas corpus and other fundamental rights was reflected again in a strange colloquy between Attorney General Alberto Gonzales and Sen. Arlen Specter during a Senate Judiciary Committee hearing on Jan. 18.

Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; that it merely says when the so-called Great Writ can be suspended.

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.

“You may be treading on your interdiction of violating common sense,” Specter said.

While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it suggests that many fundamental rights that Americans hold dear don’t exist because the Constitution often spells out rights in the negative by barring the government from intruding on them.

For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that impinge on these rights.

Similarly, Article I, Section 9, of the Constitution states that “the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.

That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the text of the Constitution.

Gonzales also may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”

Gonzales’s Jan. 18 statement suggested that he is still searching for arguments to make habeas corpus optional, subordinate to the President’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war.”

The Justice Department’s arguments in the Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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